The role of technology and the growth of information subject to privilege reviews – which make privilege claims more difficult to defend – also have implications for in-house counsel’s duty of competence.

In essence, best practices during the production phase have less to do with mechanics and checklists and much more to do with practicalities. What is right for one case may not be right for the next case.

Considering technology, discovery and forensic tools, and any agreements by the parties, the neutral expert must propose or assist with crafting an inspection protocol the parties to the litigation can agree to.

By following some basic best practices and using their finely tuned advocacy skills in less intuitive ways, GCs can better position themselves to meet needs and provide more protection for their companies in the process.